Thursday, November 12, 2009

There are many very serious reasons to oppose the government takeover of America’s health care system. But before debating whether Congress should take this step, we must first determine whether Congress may do so. In "Health Care Reform is Constitutional" on Oct. 23, professor Erwin Chemerinsky wrote in POLITICO that “there is no doubt that bills passed by House and Senate committees are constitutional.” That conclusion is easier to reach, as Chemerinsky did, by ignoring the most obvious constitutional problem with requiring individuals to buy health insurance.

The only conceivable power Congress may use for this individual mandate is its power to regulate interstate commerce. Chemerinsky correctly observed that the Supreme Court “has held that this includes authority to regulate activities that have a substantial effect on interstate commerce.” The most important word in that description of Supreme Court precedent is one he used but never discussed: “activities.” Every Supreme Court case interpreting and applying the commerce clause, over nearly two centuries, has involved Congress’s attempting to regulate what people choose to do. None of those cases involved what Congress is about to do on health care: require that people engage in an activity by purchasing a good or service whether they want to or not.

The difference between regulating what you do and requiring you to do it is a difference in kind, not degree. When Congress attempted to require that individuals purchase health insurance in 1994, the Congressional Budget Office concluded it would be an “unprecedented form of federal action.” It still is. Just a few months ago, the Congressional Research Service similarly said “it is a novel issue whether Congress may use [the commerce] clause to require an individual to purchase a good or service.” Each of these agencies had the very real doubt that Chemerinsky claims simply does not exist.

One thing did change in the legal landscape between 1994 and 2009: The Supreme Court twice found that Congress had exceeded its authority under the commerce clause. There was, it seems, something Congress may not do. But even these cases involved activities in which people had chosen to engage. In United States v. Lopez, the court rejected a version of the commerce power that would make it hard “to posit any activity by an individual that Congress is without power to regulate.” This would be the case if Congress could order people to purchase particular goods or services.

If there is no difference between regulating and requiring and between incentives and mandates, why did Congress bother creating the Cash for Clunkers program? If buying fuel-efficient cars is so important for the economy, Congress could just require people to buy them. Why does Congress need complicated bailouts when it could simply order people to deposit their paychecks in certain banks, invest in certain companies or purchase certain products? In this brave new world, Congress can tackle obesity by mandating that people buy fruits and vegetables. Perhaps this might also lead to a new chapter in regulating campaigns, with Congress requiring contributions to certain candidates to “level the playing field.”

Liberty requires limits on government. That is why we have a Constitution and why it delegates enumerated powers to the federal government. Those limits mean nothing and cannot protect liberty if the Constitution means whatever Congress wants it to mean. Requiring that individuals use their own hard-earned money to purchase whatever the federal government wants them to purchase would boldly go where the government has never gone before — and would undermine the liberty of all Americans.